Citation Nr: 1330068 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 06-08 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for adenocarcinoma of the sigmoid colon, to include as due to exposure to an herbicide agent. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to August 1970 and from November 1970 to May 1973. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania (RO) which denied service connection for adenocarcinoma of the sigmoid colon. The Board remanded the case to the RO in June 2006 for a Board hearing. The Veteran provided testimony at a September 2006 Board hearing and at a March 2009 travel Board hearing. The hearing transcripts have been associated with the claims file. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). Moreover, the law provides that an appeal may be assigned to an individual Veterans Law Judge, or to a panel of not less than three Veterans Law Judges. 38 U.S.C.A. § 7102(a) (West 2002); see also 38 C.F.R. § 19.2(b) (2013). As such, when two hearings have been held by different Veterans Law Judges concerning the same issue, the Board must assign a third Veterans Law Judge to decide that issue. 38 U.S.C.A. § 7102(a) (West 2002); 38 C.F.R. § 19.3 (2013). In this case, as noted above, the Veteran presented testimony regarding his adenocarcinoma of the sigmoid colon at both his September 2006 and March 2009 Board hearings. Therefore, this issue must be reviewed and signed by a panel of three Veterans Law Judges, including the Veterans Law Judges who presided over his September 2006 and March 2009 Board hearings. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2013). During the course of the appeal, however, one of the Veterans Law Judges who conducted the September 2006 hearing left the Board. In Arneson v. Shinseki, 24 Vet. App. 379, 385-86 (2011), the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant be provided with the opportunity to present testimony at a hearing before all three Veterans Law Judges who will ultimately decide his appeal. See also 38 U.S.C.A. §§ 7102 , 7107 (West 2002); 38 C.F.R. § 20.707 (2011). Accordingly, consistent with the Court's holding in Arneson and 38 U.S.C.A. § 7102; 38 C.F.R. § 20.707, in May 2013, the Veteran was sent a letter notifying him that one of the Veterans Law Judges who presided over one of his hearings was no longer employed by the Board and that he was entitled to the opportunity to present testimony at two additional hearings; both to replace the Veterans Law Judge who was no longer employed at the Board, and so that he can testify before a third Veterans Law Judge who will be assigned to the panel to decide his appeal as to the issue of entitlement to service connection for adenocarcinoma of the sigmoid colon. It was further noted on the letter that if he did not respond within 30 days of the date of the letter then the Board would assume that he did not want any additional hearings and would proceed accordingly. The Veteran did not respond to the Board's inquiry. Thus, the Board will presume that he does not want to testify at any additional hearings and the decision will be signed only by the Veterans Law Judge who conducted the March 2009 Board hearing. In August 2009 the Board denied service connection for adenocarcinoma of the sigmoid colon. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims and pursuant to a Joint Motion for Remand, the Court in July 2010 vacated and remanded the Board's decision. Specifically the Joint Motion noted that the Board should have considered whether the Veteran's testimony regarding potentially positive medical evidence met the low bar for providing a VA examination to address the claim. The Joint Motion also noted that the Board should consider whether efforts should be made to obtain the evidence the Veteran testified about. Thereafter, the Board remanded this case in November 2010 so that efforts could be made to obtain the private medical evidence referenced by the Veteran during his hearing testimony and a VA opinion could be provided. The directives of the Board's remand have been substantially complied with, as explained in more detail in the VCAA section below. The case is once again before the Board for review. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran's adenocarcinoma of the sigmoid colon did not have its onset during active service or within one year after service; it is not related to any in-service disease, event, or injury; and it may not be presumed to have been caused by exposure to herbicides. CONCLUSION OF LAW Adenocarcinoma of the sigmoid colon was not incurred in or aggravated by military service, nor may it be presumed to have been so incurred to include as a result of in-service exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his case, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). RO letters dated in May 2004, May 2006, and January 2009 informed the Veteran of all five elements required by 38 C.F.R. § 3.159(b), as stated above. While the May 2006 and January 2009 letters were not provided prior to the initial adjudication of the case in March 2005, the case was readjudicated in a September 2011 supplemental statement of the case, thereby curing any timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Regarding the duty to assist, VA obtained the Veteran's service treatment records and copies of the Veteran's VA treatment records, private treatment records, and Social Security Administration medical records. The Veteran testified at the September 2006 Board hearing that a Dr. McDina had told him that it was possible that his colon cancer was related to his Agent Orange exposure. In December 2010 the RO sent the Veteran a letter noting that he had testified in September 2006 that Dr. Oswald F. Medina, General Surgeon at the Martinsburg VAMC had told him that his Agent Orange exposure had possibly caused his colon cancer. The RO further noted that review of their records showed that Dr. Medina was no longer employed at the Martinsburg VAMC. Additional information concerning the medical statement was requested from the Veteran. The Veteran responded in December 2010 that he had no additional information regarding Dr. Medina. As VA does not have a date range to conduct a search of this medical opinion and the doctor is apparently no longer available to comment, no further development is warranted, in this regard. 38 C.F.R. § 3.159(c)(3). Therefore, VA has satisfied its duty to assist the Veteran in obtaining all available evidence. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was afforded a VA medical opinion in February 2011 to address whether the Veteran's adenocarcinoma of the sigmoid colon was related to his exposure to Agent Orange in the military. The Certified Registered Nurse Practitioner who provided the opinion determined that the Veteran's colon cancer was not related to his service in Vietnam where he had Agent Orange exposure, based on the fact that the service treatment records were negative for any stomach or intestinal problems, and review of the medical literature revealed no relationship between Agent Orange and colon cancer. In addition it was noted that the Veteran had a 40-year history of one and a half pack a day smoking and that there might be a relationship between the cigarette smoking and colon cancer, as supported by the medical literature. The Board finds that the medical opinion and report is sufficient in addressing the matter of nexus. In this regard, it is noted that the examiner reviewed the Veteran's claims file and medical records prior to providing the opinion, and the report itself is thoroughly supported by objective and clinical findings. The Board, therefore, concludes that the February 2011 opinion is adequate upon which to base a decision in this case. The Veteran's attorney argued in a February 2013 statement that the February 2011 opinion was inadequate because it was not based on an examination of the Veteran. His attorney further argued that the opinion was short and did not include any medical information unique to the Veteran and instead only discussed a general relationship between Agent Orange exposure and colon cancer. Finally the Veteran's attorney asserted that the failure to examine the Veteran violated the Board's prior remand instructions per Stegall v. West, 11 Vet. App. 268, 270 (1998). In making this last assertion the Veteran's attorney cited to language in the Board's remand stating that "Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report." Thus, the Veteran's attorney sought a medical examination with another opinion in this matter. The Board disagrees with the attorney's arguments regarding the sufficiency of the February 2011 opinion. Contrary to the attorney's assertions, the February 2011 nurse practitioner, did, in fact, address details that are unique to the Veteran, such as the findings in the Veteran's service treatment records and the Veteran's smoking history. The nurse practitioner also noted that medical literature did not support a relationship between Agent Orange exposure and colon cancer, but this was merely one of the factors considered, and not the only factor. Therefore, the accusation that the nurse practitioner did not consider the Veteran's unique situation is unfounded. The Board agrees that the opinion provided is relatively short, but that does not mean that all of the necessary information was not provided. The nurse provided a rationale for the opinion provided, and a reasoned analysis supporting the opinion. The nurse also cited to medical evidence to support the findings. For this reason, the Board assigns a high probative value to the opinion provided and does not find that the opinion provided is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). With respect to the assertion that the nurse should have examined the Veteran and that not doing so violated the Board's remand instructions, the Board disagrees with this argument, as well. The Board's remand instructions noted that an opinion should be provided by an appropriate VA medical specialist based on review of the claims file. An examination was not specifically directed in the remand directives. The Veteran's attorney is correct that language in the next paragraph notes that the opinion should be provided based on the results of examination and that all examination findings along with complete rationale for all opinions expressed should be set forth in the examination report. However, this generic language refers to the requirement that any opinion provided be based on objective medical findings; it does not specifically direct that the RO provide a medical examination. In this case, it is clear that the Veteran has adenocarcinoma of the sigmoid colon. Therefore, a medical examination of the Veteran was not necessary to resolve this claim. The treatment records provided already note the circumstances concerning the first diagnosis of the Veteran's colon cancer and his subsequent treatment. For this reason, there was no useful benefit to the Veteran that he would be examined again to reconfirm that he has colon cancer, or residuals of colon cancer. The determinative issue in this case is whether the Veteran's colon cancer is etiologically related to his exposure to Agent Orange. The opinion provided addressed this question and, as noted above, was based on a review of pertinent medical evidence and supported by a reasoned analysis. As the Board specifically requested that a medical opinion be provided, then the RO substantially complied with the Board's directives by only providing a medical opinion. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Furthermore, based on the circumstances of this case, an opinion without examination is sufficient to address the outstanding medical questions in this case. Also, notwithstanding the Board's request that the opinion be provided by an appropriate VA medical specialist, the fact that the VA medical professional providing the opinion was a nurse (as opposed to a doctor) does not undermine the probative value of the opinion provided. VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination). The Board may assume a VA medical examiner is competent. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed.Cir.2009) (VA has no obligation to present affirmative evidence of a VA physician's qualifications during Board proceedings, absent a challenge by the veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). The evidence does not show, nor does the Veteran contend, that the nurse practitioner who provided the opinion in February 2011 was incompetent. There is no need for further development, as the medical evidence in this case is sufficient to make a decision. The Veteran has been afforded a hearing in March 2009 before the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection claim for adenocarcinoma of the sigmoid colon. The Veteran also testified before another VLJ previously in September 2006, but that VLJ is no longer employed by the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ or DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2009 hearing, the VLJ noted the elements that were lacking to substantiate the claim and specifically sought to clarify why the Veteran believed his exposure to Agent Orange in service caused his colon cancer. The VLJ also asked specific questions directed at identifying the criteria for service connection and sought to identify any pertinent evidence not currently associated with the claims, including whether any VA doctor had related the Veteran's colon cancer to his exposure to Agent Orange. The Veteran also volunteered his treatment history and symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the March 2009 Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). With respect to the September 2006 Board hearing, while the VLJ who conducted that hearing allowed testimony on the service connection claim for adenocarcinoma of the sigmoid colon, it was noted during the hearing that the issue for appellate consideration at that time was medical expense reimbursement. Even though the VLJ conducting the September 2006 Board hearing did not specifically ask questions regarding the service connection claim for adenocarcinoma of the sigmoid colon, the Veteran and his representative through the testimony provided again demonstrated actual knowledge of the elements necessary to substantiate his claim. Moreover, any prejudice to the Veteran by the conduct of the September 2006 Board hearing was alleviated by the conduct of the March 2009 hearing. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the appellant by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101 , 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2013). The U.S. Court of Appeals for the Federal Circuit has held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran claims that his sigmoid colon cancer is related to exposure to Agent Orange in Vietnam. A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). VA regulations provide that the following diseases shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2013). Claims based on Agent Orange exposure are unique in that entitlement is based on an analysis of scientific evidence, ordered by statute. 38 U.S.C.A. § 1116(b). The Agent Orange Act of 1991 (in part) directed the Secretary of Veteran Affairs to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. Whenever the Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116(b)-(c). In response to five NAS reports (and a special interim report), the Secretary published notices of these determinations in January 1994, August 1996, November 1999, January 2001, June 2002, and May 2003. In March 2005, NAS published its sixth full report, entitled "Veterans and Agent Orange: Update 2004" (Update 2004). Consistent with prior reports of NAS, Update 2004 again found that there was "sufficient evidence of an association" between herbicide exposure and five categories of diseases in veterans and "limited/suggestive evidence'' of an association between herbicide exposure and six other categories of diseases in veterans. Update 2004 also categorized certain health outcomes as having "inadequate/insufficient" evidence to determine whether they may be associated with herbicide exposure. The health outcomes in this category include: hepatobiliary (liver) cancers; bone and joint cancer; skin cancers; urinary bladder cancer; renal cancer; respiratory disorders; gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, ulcers). Update 2004 also concluded that two health outcomes fell into the "limited or suggestive evidence of no association" category: gastrointestinal tumors (esophagus, stomach, pancreas, colon, and rectum) and brain tumors. In June 2007, the Secretary of Veterans Affairs published determinations regarding these diseases, based on all available evidence in Update 2004 and prior NAS reports. It was noted that in this report, NAS found two health outcomes that were deemed consistent in not showing a positive association between them and any magnitude of exposure to herbicides. Those health outcomes that met the "no association" category were: gastrointestinal tumors (esophagus, stomach, pancreas, colon, rectum), and brain tumors. The Secretary determined that a positive association between exposure to herbicides and gastrointestinal tract tumors did not exist. The Secretary also reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (June 12, 2007). 38 U.S.C.A. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). "Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau, 492 F.3d at 1377, n4. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson, 12 Vet. App. at 253. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran's Form DD 214 shows that he served in the Republic of Vietnam during the Vietnam Era, and there is no evidence to the contrary. Thus, he is presumed to have been exposed during such service to Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii) (2013). As the Veteran's claimed disability is not included in the above-indicated diseases associated with exposure to an herbicide agent, presumptive service connection is not warranted. Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Service treatment records do not reflect any complaints, diagnoses, or treatment that can be related to adenocarcinoma of the sigmoid colon. Social Security Administration treatment records and private treatment records dated from 1991 to 1995 show that the Veteran was seen for back problems, but do not reflect complaints, diagnoses, or treatment related to adenocarcinoma of the sigmoid colon. VA treatment records show that the Veteran was diagnosed with adenocarcinoma of the sigmoid colon in August 2002. The treatment reports show that the Veteran was seen in the emergency room after falling from a roof top two days prior to admission. The Veteran complained of abdominal pain associated with nausea which had been going on a few weeks prior to admission. He reported absence of bowel movement for about a week, and poor appetite. The Veteran had a colonoscopy with biopsy and a CT scan of the abdomen and pelvis. He was diagnosed with adenocarcinoma of the colon. An August 2002 surgical attending note shows that the Veteran fell one week prior and was hospitalized. The Veteran was found to have a large sigmoid lesion and was positive for adenocarcinoma. The lesion was 15 to 19 centimeters. There was also a 60 centimeter polyp path. The Veteran was diagnosed with sigmoid cancer. The Veteran underwent a low anterior resection for sigmoid colon cancer in August 2002. VA treatment reports dated from September 2002 to 2005 reflect a diagnosis of status post sigmoid colectomy in August 2002, status post colon cancer. The Veteran was seen for constipation, stomach complaints, and hernia. The Veteran testified during the September 2006 and March 2009 Board hearings that he felt that his colon cancer was related to his Agent Orange exposure because he had no family history of colon cancer. During the September 2006 Board hearing, he testified that Dr. McDina at the Martinsburg VA had told him that his colon cancer might be possibly caused by his Agent Orange exposure. He reported in both hearings that he served in Vietnam for 29 months. He further described his 2002 diagnosis of sigmoid colon cancer and described his treatment. A medical opinion was provided by a VA Certified Registered Nurse Practitioner in February 2011. The nurse indicated that he had reviewed the Veteran's charts and testimonies, his present medical history, and military medical history. He also reviewed medical documentation after the Veteran's service in Vietnam while he was still in the military from 1971, which noted no stomach or intestinal problems. Also, the nurse indicated a review of the Veteran's medical history including a 40-year history of one and a half pack per day smoking. After reviewing the medical literature the nurse determined that there was no relationship between Agent Orange and colon cancer but that there might be a relationship between cigarette smoking and colon cancer, as supported by the medical literature. Thus, it was the nurse's opinion that after reviewing the chart and medical history and personal history that his colon cancer was not related to his service in Vietnam where he had exposure to Agent Orange. In reviewing this claim, medical evidence of record establishes a diagnosis of adenocarcinoma of the sigmoid colon, status post sigmoid colectomy; however, the Veteran's colon cancer is not shown to have been incurred in service. Service treatment records do not reflect any problems that can be related to adenocarcinoma of the sigmoid colon in service. The earliest medical evidence of sigmoid colon cancer was in 2002, 29 years after the Veteran's separation from service. Adenocarcinoma of the sigmoid colon did not manifest within one year of the Veteran's separation from service. There is no medical evidence of record which relates the Veteran's sigmoid colon cancer to service or to Agent Orange exposure in service. The VA nurse practitioner in February 2011 determined after reviewing the pertinent medical evidence of record that the Veteran's colon cancer was not related to his service in Vietnam where he had Agent Orange exposure, because the Veteran's service treatment records did not reflect stomach or intestinal problems, the medical literature did not support a relationship between the Veteran's Agent Orange exposure and his colon cancer, and the Veteran's smoking history might have contributed to his colon cancer, as supported by the medical literature. The nurse practitioner was fully informed of the pertinent medical history of the case; he provided a fully articulated opinion; and the opinion was supported by a reasoned analysis. Therefore, the Board assigns a high probative value to the February 2011 medical opinion. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran testified regarding a medical opinion from a VA doctor, who had reportedly found that the Veteran's colon cancer might be caused by his Agent Orange exposure. This opinion is not of record; but even if it was it would not amount to more than a speculative opinion without much probative value. A medical opinion must support its conclusions with analysis. Stefl, 21 Vet. App. at 124. "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. There are no other medical opinions of record addressing the etiology of the Veteran's colon cancer. In light of the foregoing, the Board finds that service connection for adenocarcinoma of the sigmoid colon is not warranted. In making this determination, the Board has considered the Veteran's own statements in support of his claims. The Veteran testified that his colon cancer is related to Agent Orange exposure in service, stating that he does not have a family history of cancer. The Veteran can attest to factual matters of which he has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the present case, the Secretary of Veterans Affairs has determined, based the NAS Update 2004 that a positive association between exposure to herbicides and gastrointestinal tumors, to include tumors of the colon, does not exist. See 72 Fed. Reg. 32,395 (June 12, 2007). The Veteran has not submitted competent medical evidence which relates his diagnosed adenocarcinoma of the sigmoid colon to in-service exposure to Agent Orange. The Board acknowledges the Veteran's belief that his sigmoid colon cancer is related to Agent Orange exposure in service; however, where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991); see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). C. Conclusion Adenocarcinoma of the sigmoid colon is not shown by competent medical evidence to be related to service or to in-service exposure to Agent Orange. Therefore, the Board finds that the preponderance of the evidence is against finding that the Veteran has adenocarcinoma of the sigmoid colon etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Entitlement to service connection for adenocarcinoma of the sigmoid colon, to include as due to exposure to an herbicide agent is denied. ____________________________________________ S.L. KENNEDY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs